STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCIA CARROL and )

ROBERT GOODFRIEND, )

)

Petitioners, )

)

vs. ) CASE NO. 96-2632

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 26, 1996, in Ft. Myers, Florida. The parties, witnesses, and court reporter attended the formal hearing in Ft. Myers. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Rogers, Esquire

Cummings and Lockwood, P.A. 3001 Tamiami Trail North Naples, Florida 33941

For Respondent: Katherine Andrews

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioners located a flagpole on their property in violation of permit LE-367 MI and must remove the flagpole in accordance with Respondent's proposed final order dated April 3, 1996.

PRELIMINARY STATEMENT

Respondent issued final order number 8710 directing Petitioners to remove a flagpole from their property, restore any areas disturbed during the removal process, and pay an administrative fine of $500. Petitioners timely filed a Petition for Administrative Hearing.

At the formal hearing, Petitioners presented the testimony of two witnesses and submitted seven exhibits for admission in evidence. Respondent presented

the testimony of two witnesses and submitted six exhibits for admission in evidence. The identity of the witnesses and exhibits and the evidentiary rulings regarding each are set forth in the transcript of the formal hearing filed with the undersigned on August 19, 1996.

Respondent timely filed its proposed recommended order ("PRO") on August 27, 1996. Petitioner's did not timely file a PRO. Proposed findings of fact in Respondent's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. On September 24, 1992, Respondent issued permit LE-367 to Petitioner, Marcia Carrol ("Carrol"), to construct various structures on real property in North Captiva, Florida. In April, 1993, Carrol transferred the property to Petitioner, Robert Goodfriend ("Goodfriend").

   
   

2. One of the structures covered by the permit is a flagpole. The permit requires the flagpole to be located landward of the dune system.

   
   

3. During a preconstruction conference conducted on July 20, 1993, Mr. Michael Joity, Respondent's representative, approved the site of the flagpole indicated by the parties on a copy of the Master Site Plan (the "Master Plan"). The site indicated on the Master Plan complies with the permit.

   
   

4. On April 7, 1995, Mr. Joity inspected the property. The actual site of the flagpole violates the permit.

   
   

5. The flagpole is located seaward of the site approved in the permit and indicated on the Master Site Plan. The flagpole is located in the dune system and not landward of the dune system.

   
   

6. The actual location of the flagpole violates the permit in another respect. It is encased in concrete.

   
   

7. The permit does not authorize encasement of the flagpole in concrete. Concrete can increase erosional forces during storm events.

   
   

8. Neither Mr. Joity nor Respondent represented that the flagpole could be located in its actual site or encased in concrete. Neither contravened the terms of the permit.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

   
   

10. The burden of proof in this proceeding is on Respondent. Respondent must show by a preponderance of the evidence that the actual site of the flagpole and its encasement in concrete violates the terms of Respondent's permit. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

11. Respondent satisfied its burden of proof. Pursuant to Section 161.053, Florida Statutes (1995), a permit was required to construct the flagpole on the subject property. The actual site of the flagpole violates the terms of the permit.

    
    

12. The flagpole is actually located in the dune system and not landward of the dune system. The flagpole is encased in concrete and increases the possibility of environmental damage during storm events.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order: finding that the actual

site of the flagpole and its encasement in concrete violates Respondent's

permit; directing Petitioners to remove the flagpole; requiring Petitioners to restore any areas disturbed during the removal process; and ordering Petitioners to pay an administrative fine of $500.

RECOMMENDED this 11th day of September 1996, in Tallahassee, Florida.

DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1996.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Robert Rogers, Esquire Cummings and Lockwood, P.A. 3001 Tamiami Trail North Naples, Florida 33941

Katherine Andrews Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

MARCIA CARROL and ROBERT GOODFRIEND,

Petitioners,

v. DOAH No. 96-2632

OGC No. 96-0714

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/

FINAL ORDER

On September 11, 1996, Hearing Officer Daniel Manry of the Division of Administrative Hearings submitted a Recommended Order to the Department and to Petitioners, Marcia Carrol and Robert Goodfriend. A copy of that Recommended Order is attached as Exhibit 1. Timely Exceptions to the Recommended Order were filed by the Department and Petitioners. This matter is now before me as Secretary of the Department for final agency action.

BACKGROUND

On September 24, 1 992, Petitioner Carrol was issued permit LE-367 to construct, among other things, a flagpole on her property on North Captiva, Florida. By its terms, the permit required the flagpole to be located landward

of the dune system. The flagpole was actually constructed in the dune system. In April 1 993, Petitioner Carrol transferred the property to Petitioner Goodfriend.

On April 3, 1996, the Department issued a Final Order (Exhibit 2) alleging, inter alia, that the Respondent Carrol, through her agents, had constructed a flagpole in violation of permit LE-367. The final order required that the Petitioners remove the flagpole and restore the area within 30 days. The Petitioners timely filed a petition challenging the Final Order and the case was sent to the Division of Administrative Hearings for disposition.

The crux of the Petitioners' position is that notwithstanding the provisions of the permit, the Department authorized the placement of the flagpole in its present location and that removal of the flagpole would cause environmental harm.

The hearing officer conducted a hearing on August 19, 1996. At the conclusion of the hearing the parties were informed that they had a right, if they chose, to file a proposed recommended order, that the proposed recommended order was due ten days after the transcript was filed with the hearing officer, and that the parties would not be notified of the filing and therefore had to contact the hearing officer's office to determine when the transcript was filed.

The Department timely filed a proposed recommended order. The Petitioners filed an untimely proposed recommended order which was not considered by the hearing officer in preparing his recommended order. The Petitioners did not file a motion with the hearing officer to either extend the

time to file or excuse the late filing of their proposed recommended order.

The hearing officer adopted the Department's proposed findings of fact and recommended the Department direct the Petitioners remove the flagpole and restore the areas disturbed by the removal and pay an administrative fine of

$500. The Petitioners timely filed four exceptions (Exhibit 3) and the Department timely filed one exception (Exhibit 4).

RULING ON PETITIONERS' EXCEPTIONS

Petitioners' First Exception:

In their first exception Petitioners attempt to explain why their proposed recommended order was late. Apparently, Petitioners' attorney was confused about when the transcript was filed with the hearing officer. However, there is no mention that Petitioners or their attorney contacted the hearing officer to determine when the transcript was filed, as the hearing officer clearly instructed at the conclusion of the hearing

As related above, the Petitioners did not file any motion with the hearing officer to extend the time for filing their proposed recommended order or to otherwise excuse its late filing. The filing of a proposed recommended order is optional and the failure to do so is not fatal to the Petitioners' case. I find that the issue concerning the filing of the proposed recommended order is a procedural matter within the purview of the hearing officer and should have been addressed with the hearing officer. In addition, I would note that Petitioners do not request any relief from the Department concerning the late-filed proposed recommended order. Therefore, to the extent the first exception can be construed as a motion for relief due to the hearing officer's refusal to consider the Petitioner's proposed recommended order, the motion is denied. To

the extent the first exception is merely an explanation of what happened, the exception is denied as irrelevant to the findings of fact and conclusions of law set forth in the Recommended Order.

Petitioners' Second Exception:

In their second exception Petitioners assert that because the actual locations of the flagpole and deck are different than the locations depicted on the Master Site Plan the Department must have instructed Petitioner Carrol to install the flagpole at its present location. The hearing officer rejected this interpretation of the evidence and I find his interpretation is

supported by competent substantial evidence.

Permit LE-367 (Respondent's Exhibit #1) provides that the Department will meet with the permittee prior to construction to establish the location of the flagpole, gazebo and walkover. (Special Permit Conditions 2, 3 and 4.) The flagpole was to be located entirely landward of the primary dune. (Special Permit Condition 2.) The siting of the walkover was to be determined at the preconstruction meeting. (Special Permit Condition 3.)

The preconstruction meeting was held July 20, 1993. On July 20, 1993, Christen Busk, agent for Petitioner Carrol, sent a Letter of Transmittal (Respondent's Exhibit #2) to Tony McNeal of the Department stating he had "just finished meeting with Mike Joity and revised the plan accordingly." The Letter of Transmittal concludes by stating "Mike also approved the location of the flagpole." Along with the Letter of Transmittal was transmitted the Master Site Plan (Respondent's Exhibit #3). The Master Site Plan shows that it was last revised on July 20, 1993. It shows the location of the flagpole landward of the dunes and in a location which is acceptable to the Department. The flagpole was not installed in this location.

On July 29, 1 993, Christen Busk sent another letter to Tony McNeal. (Respondent's Exhibit #4.) In that letter Mr. Busk requested that the July 20, 1993, revisions on the Master Site Plan be included in a modification to Permit LE-367, including "3) Actual location of flagpole."

Petitioners argue that Mr. Joity, the Department's field engineer, did not notice on his 1995 inspection that the deck walk was also not constructed as depicted on the Master Site Plan. They go on to infer that the reason he didn't notice the deck walk was built in the wrong place that it must have been built in the right place, i.e., in the location agreed to by Mr. Joity at the preconstruction conference. From there they reason that if the deck walkover was constructed in the agreed to location, the flagpole must also have been constructed in the agreed to location.

A crucial flaw in this reasoning is the uncontroverted testimony of both McNeal and Joity that any changes made by a field engineer at a preconstruction conference can never contravene the specific permit conditions. In this case, the permit specified that the flagpole must be constructed landward of the dune system.

The hearing officer interpreted the evidence presented and concluded that "Neither Mr. Joity nor [the Department] represented that the flagpole could be located in its actual site or encased in concrete." It was reasonable for the hearing officer to conclude that the field engineer would not make changes at the preconstruction conference which contravened the clear permit conditions.

This finding is a reasonable interpretation and supported by competent substantial evidence. I reject the Petitioners' second exception.

Petitioners' Third Exception:

Petitioners' third exception concerns the encasement of the flagpole in concrete. The essence of Petitioners' argument is that they were never told the flagpole could not be encased in concrete. It is true that the Final Order does not mention this violation of the permit, however, the issue was raised without objection at hearing and thoroughly litigated without objection. A petition for a formal 120.57 hearing commences a de novo proceeding which is intended to formulate agency action. In that regard, the agency may consider any additional information necessary to help formulate its decision. McDonald v. Department of Banking and Finance, 346 So.2d 569,584 (Fla. 1st DCA 1977).

Rule 6B-33.O15, Florida Administrative Code, provides that "No construction and no excavation except that specifically approved shall be conducted seaward of the coastal construction control line. In this case Permit LE-367 did not specifically authorize encasing the flagpole in concrete, and it was not necessary to encase the flagpole in concrete. Mr. McNeal testified the Department would not have issued a permit authorizing a flagpole encased in concrete. The Petitioners put forth no evidence showing that encasing the flagpole in concrete was either permitted or necessary. Therefore, the Petitioners' third exception is denied.

Petitioners' Fourth Exception:

In their fourth exception, Petitioners take issue with the hearing officer's conclusion that the concrete around the flagpole will "increase the possibility of environmental damage during storm events." While it is true there was testimony that there is presently accretion to the island at this time, there was unrebutted testimony that the concrete could increase erosion during storms. The Petitioners presented no evidence that removal of the flagpole would do greater damage than leaving it in place. The hearing officer's finding that "Concrete can increase erosional forced during storm events" is supported by competent substantial evidence. Therefore, Petitioner's fourth exception is rejected.

RULING ON THE DEPARTMENT'S EXCEPTION

The Department filed one exception requesting that a time limit of 30 days be imposed on the hearing officer's requirement that the flagpole be removed.

The 30 day limit was set forth in the final order but was not discussed at the hearing or included in the Recommended Order. The general rule is that a reasonable time is implied when no time period is specified. Doolittle v.

Fruehauf Corp., 332 So.2d 107 (FLA. 1st DCA 1976). In this case, I find that 30 days is a reasonable time for removing the flagpole and restoring the areas disturbed by the removal. The Department's exception is accepted.

Therefore, it is ORDERED:

1. The Recommended Order in this case is approved and adopted in its entirety, except as modified by this Final Order.

   
   

2. Within 30 days of the effective date of this Final Order, Petitioners Marcia Carrol and Robert Goodfriend shall remove the flagpole and the encasing concrete and restore any areas disturbed during the removal process.

3. Within 30 days of the effective date of this Final Order, Petitioners Marcia Carrol and Robert Goodfriend shall pay the Department an administrative fine of $500.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.6, F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellant Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS-35, Tallahassee, FL 32399-3000; and by filing a copy of the Notice of Appeal accompanied by applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 12th day of December, 1996 in Tallahassee, Florida STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed by U.S. Mail to Daniel Manley, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, Robert Rogers, 3001 Tamiami Trail, Naples, Florida 33941, and hand delivered to Katherine Andrews 3900 Commonwealth Boulevard, Tallahassee Florida 32399-3000, on December 12th, 1996.

David K. Thulman Assistant General Counsel

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tel. (904) 921-9655

FBN: 356115

Docket for Case No: 96-002632

Orders for Case No: 96-002632